Habul v Jakupovic[2015] QCAT 428

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Background

1. [1]
   This matter originally came on for hearing before me in May 2013.  The agreed issue for determination in that initial hearing, which lasted 2 days, was the respondents liability for defective plastering work. 
2. [2]
   I concluded that in respect of 12 items of complaint, Mr Jakupovic’s company Moose Plastering Pty Ltd, the second respondent, rather than Mr Jakupovic himself, was responsible for 8 items of defective plastering work.
3. [3]
   On appeal by the respondents the Appeal Tribunal reduced the number of defective items of work the responsibility of the second respondent to rectify to 4.

Quantum

4. [4]
   The parties have been unable to agree on the costs of rectification.  That remains to be decided by the Tribunal.  Both parties have filed submissions and evidence concerning the cost of rectification.  Those costs do not include costs of rectification of any defective substrate under the plastering where that was the original problem.  Appropriately the cost estimates are essentially limited to costs of replastering only^[1].
5. [5]
   The parties were ordered to filed sworn statements of evidence concerning quantum.  The respondents have filed unsworn quotations from various plasterers.  The applicant filed a sworn statement of evidence by Graham Tonkin of JHA Australia Pty Ltd, remedial builders, but out of time.  Given neither party complied strictly with orders I conclude I by default I should take all the material submitted into account in an endeavour to finally conclude a long drawn out affair.
6. [6]
   There is really little between the parties as to the cost of remedial plastering and painting.  The estimate from JHA Australia Pty Ltd of plastering and painting is $5230 plus GST.
7. [7]
   The respondents rely upon a quote from Uneeda Plasterers dated 29 May 2015 of $6300 plus GST.  That quotation includes the cost of scaffolding for repairs to the ceiling rose but does not include any painting costs.
8. [8]
   The respondents also rely upon a quotation from Interior Plaster Services Pty Ltd dated 18 May 2015.  That quotation is for $5360 plus GST.  Painting is not included and there is no mention of costs of scaffolding.
9. [9]
   There is also a quotation from Featureroom.Com dated 2 October 2012 quoting a cost of $2999.90 plus GST without explanation of what comprised the scope of work.  That quotation has little detail and in result is of little assistance in the matter.
10. [10]
    The estimate from JHA Australia Pty Ltd also includes a cost of $4500 plus GST for site establishment and $2000 plus GST for supervision and management.  The site establishment cost is said to include scaffolding.
11. [11]
    I conclude there will need to be scaffolding erected for the rectification work, but the large site establishment cost proposed by JHA Australia Pty Ltd is unexplained and incongruent given the other quotations which make no such provision.  I conclude the Uneeda quotation of $6,930 (including GST) is the appropriate measure of cost of remedial plastering.  That quotation does not include the cost of painting.  The K & L Morris Pty Ltd quotation of $787.60 (including GST) is for painting only.  The JHA Australia Pty Ltd quotation includes a breakdown for painting which is more than double that of K & L Morris.  The JHA estimate for the plastering component is much lower though that that of Uneeda or Interior Plaster Services.  I consider it does justice to both parties to accept the higher plastering estimate of Uneeda and the lower painting cost estimate of K & L Morris.  The cost of painting is therefore set at $787.60 (inclusive of GST).
12. [12]
    Given the defective plastering work that falls to be rectified by the respondent is not associated with rectification of defective substrate, I cannot understand how JHA Australia Pty Ltd adds a supervision and management cost of $2,200 (inclusive of GST) to the estimate of repairs.  At end of day, the work necessary is primarily a straight forward plastering job, and little ongoing coordination between carpenter and plasterer will be required.  A supervising builder is not necessary and therefore no builder’s margin need be incurred.  I do not accept that cost is a reasonable cost in these circumstances.
13. [13]
    I therefore conclude the Second Respondent should pay the Applicant costs of rectification of $7,717.60 inclusive of GST.

Costs

14. [14]
    The Applicant seeks costs.  The Respondent says there should be no order as to costs. 
15. [15]
    Section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) provides that the Tribunal may decide a building dispute and amongst other things the Tribunal is given power to award costs.  That provision displaces the usual order in Tribunal proceedings that each party bear their own costs^[2].  Where s 77 of the QBCC Act applies, whilst the award of costs is discretionary, the usual order for litigation in Australian courts should apply which is the successful party is entitled to costs^[3].
16. [16]
    Here the Applicant has been partially successful.  The matter was not a straight forward dispute on the facts but additionally involved some degree of legal complexity.  The complexity becomes apparent given the basis of the decision of the Appeal Tribunal.  Dealings between contractors in similar exchange of trade scenarios will require some care in future.  In all the circumstances I fail to see why the usual order as to cost should not apply.  There are no factors of fairness or significance that apply to deny the successful party his costs.  There is a suggestion by the respondent’s Counsel that liability was accepted for rectification of two of the 4 defects which the respondent has been found responsible for, but any such acceptance was apparently done at or just before the matter proceeded on the day by which time Counsel was engaged and his fees no doubt payable.  The award should be limited to costs on a standard basis on the Magistrates Court scale, with Counsel certified for but limited to the first day.
17. [17]
    The Appeal Tribunal made no order concerning costs of appeal.  I cannot make an order now involving the appeal.  That was a matter that should have been pursued there.  That there was no order as to costs may well have been intended.

Orders

18. [18]
    The appropriate order is that the second respondent Moose Plastering Pty Ltd pay the applicant the sum of $7,717.60 plus costs on a standard basis on the appropriate Magistrates Court scale of costs.
19. [19]
    Given the relationship between the respondents there is no order as to costs between them.